EXECUTION COPY
AGREEMENT
THIS AGREEMENT is made on June ___, 1997, by and among XXXXXX XXXXXX and
XXXXXXX XXXX, the sole members of an unincorporated joint venture whose F.E.I.N.
is 00-0000000 (collectively, the "SELLER"), UNIVERSAL OUTDOOR (N.Y.) ADVERTISING
ACQUISITION CORPORATION, a Delaware corporation whose F.E.I.N is _______________
("BUYER"), UNIVERSAL OUTDOOR, INC., an Illinois corporation whose F.E.I.N. is
00-0000000 ("PARENT"), and ALLIED OUTDOOR ADVERTISING, INC., a New York
corporation ("GUARANTOR"). In consideration of the mutual promises and
undertakings contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
SELLER agrees to sell and BUYER agrees to buy certain specified assets of
SELLER, upon the following terms and conditions:
1.0 EFFECTIVE DATE. The effective date of the transfer of the assets to
be conveyed shall be the date of Closing.
2.0 ASSETS TO BE SOLD. At Closing, SELLER agrees to convey to BUYER all
of SELLER'S rights, title and interests in and to the following property
("Assets") at the locations listed on Exhibit 2.0 free and clear of all liens
and encumbrances that are caused by any action, inaction or omission by Seller,
by a Xxxx of Sale and Assignment and Assumption Agreements:
2.1 OUTDOOR ADVERTISING DISPLAYS. All personal property owned by
Seller and used in the operation of the existing bulletin, painted walls or any
other outdoor advertising displays ("Displays") as are more fully described by
location in Exhibit 2.0, which property shall be conveyed pursuant to the
original Xxxx of Sale, which is attached as Exhibit 2.1;
2.2 GROUND LEASES. The title, leases, licenses or agreements for the
rights of use ("Leases"), for the locations listed on Exhibit 2.0, which Leases
shall be conveyed pursuant to the original Assignment and Assumption of Leases,
which is attached as Exhibit 2.2;
2.3 ADVERTISING CONTRACTS. The advertising contracts ("Contracts")
for the locations listed on Exhibit 2.0, which
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Contracts shall be conveyed pursuant to the original Assignment and Assumption
of Advertising Contracts, which is attached as Exhibit 2.3;
2.4 PERMITS. All permits and governmental approvals ("Permits") for
the purposes of erecting, operating, illuminating and maintaining the Displays
at the locations listed on Exhibit 2.0, which Permits shall be conveyed pursuant
to the original Assignment and Assumption of Permits, which is attached as
Exhibit 2.4; and
2.5 [Intentionally Omitted]
3.0 PURCHASE PRICE. BUYER agrees to purchase the Assets for the sum of
$2,303,040 (plus or minus prorations as specified below)("Purchase Price")
payable to SELLER and PARENT agrees to assume the Assumed Liabilities (as
defined below) pursuant to an original undertaking in the form attached as
Exhibit 3.0(b)("Undertaking"). The Purchase Price shall be paid by wire
transfer to an account designated by Seller on Exhibit 3.0(a).
3.1 ASSUMED LIABILITIES. Assumed Liabilities means all obligations
of the Seller pursuant to the Leases, Permits and Contracts.
3.2 ALLOCATION OF PURCHASE PRICE. Prior to the Closing Date, the
BUYER and the SELLER shall mutually agree to (and shall each deliver at Closing)
the allocation of the Purchase Price as provided below (the "Allocation
Schedule"). Prior to Closing, the SELLER shall make available to the BUYER, or
provide the BUYER with access to, all information necessary for the preparation
of the Allocation Schedule. The BUYER and the SELLER shall cooperate and use
their best efforts to prepare and to agree to the Allocation Schedule prior to
Closing. The Allocation Schedule shall allocate the Purchase Price (which in
the parties joint discretion constitutes the amount paid to acquire the separate
Assets for federal, state or local income tax purposes) among the Assets
provided for in Section 2.0 hereof in accordance with the fair market value of
such Assets. The BUYER and SELLER shall each report the transactions
contemplated under this Agreement for all federal, state and local income tax
and other purposes (including, without limitation, for purposes of Section 1060
of the Code) as set forth on the Allocation Schedule.
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4.0 CLOSING. This transaction shall be closed ("Closing") simultaneously
with the Closing under that certain Asset Purchase Agreement, by and between
BUYER, PARENT and Allied Outdoor Advertising, Inc., a New York corporation,
dated June , 1997 ("Closing Date").
5.0 TRANSFER OF ASSETS.
5.1 SELLER shall convey the Assets referred to in Paragraphs 2.0 -
2.4 to BUYER by delivering to BUYER a Xxxx of Sale and Assignment and Assumption
Agreements in the form set forth on Exhibits 2.1, 2.2, 2.3 and 2.4. PARENT
shall assume the Assumed Liabilities referred to in paragraph 3.1 by delivering
to SELLER the Undertaking in the form set forth in Exhibit 3.0(b).
5.2 BUYER shall be entitled to all payments due under the Contracts
beginning on the Closing Date and thereafter. In the event the SELLER receives
any such payments after Closing, the same shall be immediately transferred to
the BUYER. In the event the SELLER receives, after Closing, any checks for any
such payments payable to the SELLER, the SELLER shall endorse the same, payable
to the order of the BUYER, and shall immediately deliver the said checks to the
BUYER. It is understood, however, that any sums due under the Contracts for any
time period before the Closing shall remain the property of the SELLER and shall
continue to be a receivable of the SELLER, even after Closing. If there shall
be any check received pertaining to both time periods (before and after the
Closing) BUYER and SELLER agree to distribute the proceeds in a manner
consistent with this paragraph. At Closing, SELLER shall deliver executed
Notices from SELLER to advertisers directing payment to BUYER after the Closing
of payments for advertising services dated on and after the Closing on Contracts
conveyed. At Closing BUYER shall deliver executed notices from BUYER to lessors
of the Leases advising the lessors that the SELLER's obligations under the
Leases have been assigned to and assumed by the PARENT effective the Closing.
5.3 SELLER will, on or after Closing, execute and deliver any other
documents as may be reasonably necessary to transfer or further perfect title to
the Assets transferred to BUYER including, without limitation, bills of sale,
assignments, permits and any other documents and send letters and notices to
advertisers, lessors and appropriate government officials
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notifying them of the date of transfer and that future payments, notices, etc.,
are to be directed to BUYER or its nominee.
6.0 CLOSING STATEMENT. At the time of Closing, the parties shall prepare
a Closing Statement which shall be signed by each of the parties and shall
indicate appropriate debits and credits on account of the Purchase Price,
prorations, security deposits and other adjustments as more fully described in
this Agreement.
7.0 BOOKS AND RECORDS. At the time of Closing, SELLER shall deliver to
BUYER all books, records, and other documents in SELLER's possession or control,
relating to the Assets, including but not limited to the following: (1) all
Leases, Contracts and Permits (2) all communications from lessors, advertisers,
government authorities or third-parties relating to the Assets or the operation
of Assets, and (3) all documents and computer-generated reports of the last
twelve (12) months relating to the Assets to the extent they exist and are
conveniently available, including a complete list of all ground lease lessors,
advertising customers and their respective mailing addresses and phone numbers,
all photographs of Displays under contract and all art work, sketches, pounce
patterns, diagrams, schematics and related materials.
7.1 SELLER may retain copies of and shall continue after the Closing
Date to have access to any books, records or other documents transferred:
7.1.1 which are or may be relevant to any claim or defense
SELLER may have against third persons, including any governmental body, in any
action or proceeding concerning the Assets, or
7.1.2 which are or may be relevant to any liability of Seller
in connection with or arising out of the conduct or ownership of the Assets.
7.2 This provision shall not constitute a covenant by or requirement
that the BUYER preserve or retain for more than one year from the Closing Date
any books, records, or other documents delivered under this provision.
8.0 NO LIENS AT CLOSING. SELLER will, prior to or at the time of Closing,
take such steps necessary to deliver title to the
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Assets free of any liens or encumbrances that are caused by any action, inaction
or omission by SELLER and as otherwise warranted.
9.0 PRORATIONS. The Purchase Price set forth in Paragraph 3.0 is subject
to the following adjustments and prorations:
9.1 Plus an amount which will credit SELLER for lease payments which
have been paid in advance for time periods on and after Closing ("Prepaid
Leases"). Attached as Exhibit 9.1 is a list of Prepaid Leases which Buyer and
Seller agree shall be added to the Purchase Price.
9.2 Minus the amounts which will credit Buyer for the following:
9.2.1 Any lease payments for which Buyer becomes obligated
relating to any period of time prior to Closing.
9.2.2 Any advertising services delivered by Parent or Buyer
on and after Closing for which Seller has already billed or otherwise receives
payment.
9.2.3 All items of income and expense listed below relating
to the Assets will be prorated as of the Closing Date, with Seller liable to the
extent such items relate to any time period up to and including the Closing
Date, and Buyer liable to the extent such items relate to periods on or
subsequent to the Closing Date; including without limitation (a) personal
property, real estate, occupancy and water taxes, if any, on or with respect to
the Assets; (b) rents, taxes and other items payable by Seller under any
contract to be assigned to or assumed by Buyer; (c) the amount of sewer rents
and charges for water, telephone, electricity and other utilities and fuel; (d)
all rentals that are or would be payable or have accrued pursuant to "percentage
rental" lease provisions with respect to periods after the Closing Date; and (e)
all items paid or payable on or after the Closing Date under any obligation
specifically assumed to the extent not specifically referenced in clauses (a) -
(d) above which are normally prorated in connection with similar transactions.
A list of percentage leases with the date of expiration is attached hereto as
Exhibit 9.2.3;
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9.2.4 If current payments with respect to items to be
prorated pursuant to this Section 9.2 are not ascertainable on or before the
Closing Date, such payments shall be prorated on the basis of the most recently
ascertainable xxxx therefor and shall be reprobated between Seller and Buyer
when the current bills with respect to such items have been issued and a cash
settlement shall be made within thirty (30) days thereafter.
10.0 SELLER'S AND GUARANTOR'S WARRANTIES. SELLER represents, warrants and
agrees that the following are true and correct on the date of this Agreement and
will continue to be true and correct on each day until and including the Closing
as though made on and as of each day:
10.1 CAPACITY. Xxxxxx Xxxxxx and Xxxxxxx Xxxx have the legal
capacity to execute this Agreement and to consummate the transactions
contemplated hereby. Seller is an unincorporated joint venture whose sole
members are Xxxxxx Xxxxxx and Xxxxxxx Xxxx.
10.2 AUTHORIZATION. SELLER is duly authorized to execute, deliver and
complete this Agreement.
10.3 [Intentionally Omitted]
10.4 LIABILITIES. Except as set forth in Exhibit 10.5, SELLER has
not received written notice nor has any knowledge of any liability, absolute or
contingent, arising from or in any way connected with the Assets.
10.5 LITIGATION. Except as set forth in Exhibit 10.5, Seller has not
received written notice nor has any knowledge of any action, proceeding, or
investigation pending or threatened against SELLER or involving any of the
Assets before any court or before any governmental department, commission,
board, agency, or instrumentality, nor does SELLER know of any basis for any
such action, proceeding or investigation which could result in any order,
injunction or decree against SELLER or involve any of the Assets.
10.6 AGREEMENTS. This Agreement will not conflict with, result in a
breach of the terms and conditions of, accelerate any provision of, or
constitute any default under any
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contract or agreement to which SELLER is now, or may become a party.
10.7 TITLE OF ASSETS. As of the Closing, in the case of the Leases,
Seller has, and will deliver to Buyer a leasehold interest in each of the real
properties described on Exhibit 2.0, free and clear of all liens and
encumbrances that are caused by any action, inaction or omission by Seller. As
of Closing, the Seller will have, and will deliver to the Buyer, good and
marketable title to all of the other Assets.
10.8 CONDITION OF DISPLAYS. The Displays and all related equipment
to be sold to BUYER are in good working order and repair and are fit for their
intended purpose in accordance with industry standards. SELLER has not received
any written notice nor has any knowledge that any Display fails to comply with
all applicable building codes, zoning or other promulgations of entities having
jurisdiction over the construction and maintenance of the Displays, except as
set forth on Exhibit 10.8.
10.9 COMPLIANCE WITH APPLICABLE LAWS. The SELLER has not been
threatened to be charged with, nor has been given written notice of, any
violation of, or to the best of SELLER's knowledge, is under investigation with
respect to, any applicable laws, ordinances, rules and regulations of any
federal, state, local or foreign governmental authority, except as set forth on
Exhibit 10.9(a). The SELLER (i) has timely filed or will timely file all tax
returns required to be filed by the SELLER on or prior to the Closing Date, (ii)
has timely paid in full all taxes that are due or claimed to be due with respect
to any periods ending on or before the Closing Date, (iii) is not required to
file any state tax returns other than as set forth on Exhibit 10.9(b), (iv) has
not received any written notice nor has any knowledge that any deficiency for
any taxes has been proposed, asserted or assessed against the SELLER which has
not been resolved and paid in full and (v) has not received any notice of
deficiency or assessment from any tax authority with respect to liabilities for
taxes which has not been resolved and paid in full. In addition, there are no
liens, security interests or other encumbrances for taxes upon any of the Assets
other than liens, security interests or other encumbrances for taxes not yet due
or payable. The GUARANTOR shall also deliver to BUYER proper certified copies
of resolutions authorizing the GUARANTOR's guarantee of the SELLER's obligations
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under this Agreement and the grant of a non-exclusive royalty-free license to
BUYER and PARENT to use the GUARANTOR's name and marks.
10.10 LEASES. The Leases are in full force and effect and permit the
continued presence of the Displays as stated in the Leases. SELLER has not
received written notice nor has any knowledge that either SELLER or any lessor
is in default of any Lease. The Leases are freely assignable to BUYER without
consent of the lessors or any other party. Contractual lease payments will be
made by SELLER for all periods up to the Closing.
10.11 CONTRACTS. The Contracts are in full force and effect and
enforceable in accordance with their terms. Neither SELLER nor to SELLER's
knowledge is any advertiser in default of any Contract.
10.12 PERMITS. Including as set forth in Exhibit 10.5, SELLER has
disclosed to BUYER and PARENT all information it possesses with respect to all
permits and other federal, state and local authorizations which permit the
continued presence of the Displays (where located); all applicable fees for such
Permits have been paid; to SELLER's knowledge, all such Permits are fully
transferable to BUYER; and neither the execution nor the consummation of this
Agreement will terminate any Permit. SELLER agrees to cooperate fully with
BUYER in renewing any Permit after Closing, PROVIDED, THAT, any such renewal
shall be at the sole expense of BUYER.
10.13 BROKERS. SELLER is not a party to or in any way obligated
under any contract for payment of fees and expenses to any broker or finder in
connection with the origin, negotiation, execution or consummation of this
Agreement, and notwithstanding Paragraph 15, SELLER agrees to indemnify and hold
BUYER harmless from any liability arising from this transaction from any loss,
liability or obligation incurred by BUYER by reason of a breach of this
representation.
10.14 DISCLOSURE. No representation or warranty made by SELLER in
this Agreement nor any statement or certificate already furnished or to be
furnished by SELLER in connection with the transactions contemplated herein,
contain any known untrue statement of or fails to state a known material fact.
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10.15 NO CONTINUING INTEREST. Following Closing, neither SELLER nor
any officer, director or shareholder of SELLER will have any direct, indirect or
beneficial ownership or other financial interest in any real or personal
property which is in any way involved with or related to the operation of the
Assets being purchased by BUYER.
11.0 PARENT'S AND BUYER'S WARRANTIES. PARENT and BUYER represent, warrant
and agree that the following are true and correct on the date of this Agreement
and will continue to be true and correct on each day until and including the
Closing as though remade each day.
11.1 ORGANIZATION. Each of PARENT and BUYER is a corporation formed
under the laws of its state of incorporation, it has complied with all laws
concerning the right of the corporation to conduct its business and is legally
qualified to transact such business. Each of PARENT and BUYER has the full
power and authority to own, lease and operate its properties and conduct its
business as conducted in the places where the properties are now owned, leased
or operated, by SELLER.
11.2 AUTHORIZATION. Each of PARENT and BUYER is duly authorized to
execute, deliver and complete this Agreement.
11.3 COMPLIANCE WITH STATES' CORPORATE LAWS. Each of PARENT and
BUYER will comply with all the requirements and conditions of the applicable
corporation law of its state of incorporation relative to the sale of the assets
by the date of Closing and will deliver to SELLER an Officer's Certificate
attesting to its authority to negotiate and consummate this transaction whether
or not required by the applicable state corporate law.
11.4 BROKERS. Neither PARENT nor BUYER is a party to or in any way
obligated under any contract for payment of fees and expenses to any broker or
finder in connection with the origin, negotiation, execution or consummation of
this Agreement, and notwithstanding Paragraph 15, each of PARENT and BUYER
agrees to indemnify and hold SELLER harmless from any liability arising from
this transaction from any loss, liability or obligation incurred by SELLER by
reason of a breach of this representation.
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12.0 CONDITIONS TO OBLIGATIONS OF BUYER. The obligation of BUYER to
close or perform is subject to the satisfaction of the following conditions, any
of which the BUYER may at its election enforce or waive:
12.1 [Intentionally Omitted]
12.2 All representations and warranties of SELLER hereunder shall be
true and correct as of the date of this Agreement and shall be true and correct
in all respects on the Closing Date with the same force as if such
representations and warranties had been made on the Closing Date, all agreements
to be performed by SELLER on or prior to the Closing Date shall have been fully
performed, and BUYER shall have received a certificate dated the Closing Date
signed by Xxxxxx Xxxxxx and Xxxxxxx Xxxx to that effect.
12.3 There shall not have been any material adverse change in the
Assets or SELLER's condition, financial or otherwise, including without
limitation its relationships with customers, landlords or others, between the
date of this Agreement and the date of Closing. SELLER agrees to operate and
maintain its business in its regular course from the date of this Agreement to
Closing.
12.4 SELLER shall have maintained the Assets to be conveyed,
including the Displays, in at least as good condition and repair as on the date
of this Agreement and will not voluntarily suffer anything to be done that will
decrease the value of the Assets, ordinary wear and tear excepted.
12.5 Counsel for BUYER shall have approved the form, substance and
sufficiency of all instruments to be delivered by SELLER at or before Closing.
Approval will not be unreasonably withheld.
12.6 If SELLER cannot timely cure any defect which prevents Closing
after its best efforts, then either party may rescind this Agreement.
13.0 CONDITIONS TO OBLIGATIONS OF SELLER. The obligation of SELLER to
close or perform is subject to the satisfaction of the following conditions, any
of which the SELLER may at its election enforce or waive:
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13.1 All representations and warranties of BUYER and PARENT hereunder
shall be true and correct as of the date of this Agreement and shall be true and
correct in all respects on the Closing Date with the same force as if such
representations and warranties had been made on the Closing Date, all agreements
to be performed by BUYER and PARENT on or prior to the Closing Date shall have
been fully performed, and SELLER shall have received a certificate dated the
Closing Date signed by the duly authorized President or Vice President of BUYER
and PARENT to that effect.
13.2 Counsel for SELLER shall have approved the form, substance and
sufficiency of all instruments to be delivered by BUYER and PARENT at or before
Closing. Approval will not be unreasonably withheld.
13.3 If BUYER cannot timely cure any defect which prevents Closing
after its best efforts, then either party may rescind this Agreement.
14.0 GENERAL CONDITIONS.
14.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations and warranties made by the Parties to this Agreement shall
survive until fourteen (14) months following the Closing of this Agreement. The
covenants and agreements contained herein shall survive without limitation.
14.2 SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of the successors and assigns of SELLER PARENT and BUYER.
14.3 NOTICES. All notices shall be in writing and delivered in person
or sent by certified, registered or express mail or by facsimile:
IF FOR PARENT OR BUYER, Universal Outdoor, Inc.
ADDRESSED TO: 000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx
Telecopy: (000) 000-0000
Xxxxx & Company
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000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxx III
Telecopy: (000) 000-0000
WITH A COPY TO: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
IF FOR SELLER, ADDRESSED TO: Xxxxxx Xxxxxx and Xxxxxxx Xxxx c/o
Allied Outdoor Advertising Inc.
00 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx Xxxxxx
Senior Vice President for
Legal Affairs, General Counsel
Telecopy: (000) 000-0000
WITH A COPY TO: Allied Outdoor Advertising Inc.
00 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Xxxxxx & Xxxxxxx
Xxx Xxxxxx Xxxxx
Xxxx Xxx, Xxx Xxxxxx 00000
Attn: Xxxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
or such other address for either or both as is stated in a written notice given
in compliance under this clause.
14.4 HEADINGS. The various headings used in this Agreement as
headings for sections or otherwise are for convenience only and shall not be
used in interpreting the text of the section in which they appear.
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14.5 PRESS RELEASES. Prior to the Closing, any press releases or
other public announcement of this transaction, other than any filing that may be
required by law, shall be first approved by the BUYER and the SELLER.
14.6 GOVERNING LAW. This Agreement shall be construed and interpreted
in accordance with the law of the State of New York, without regard to the
conflict of laws principles thereof.
14.7 SEVERABILITY. The invalidity of any provision of this Agreement
shall not impair the validity of any other provision. If any provision of this
Agreement is determined by a court of competent jurisdiction to be
unenforceable, that provision will be deemed severable and the Agreement shall
be enforced with that provision severed or as modified by the court to the
extent necessary to carry out the present manifest intentions of the parties.
14.8 ENTIRE AGREEMENT AND MODIFICATION. This Agreement sets forth the
entire understanding of the parties. It may be amended, modified or terminated
only by instruments signed by the parties.
14.9 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be and shall constitute one and the same
instrument.
14.10 FEES AND COSTS. PARENT, BUYER and SELLER agree that each party
shall bear its own costs and expenses, including attorneys fees, in connection
with this transaction.
15.0 INDEMNIFICATION.
15.1 SELLER shall defend, indemnify and hold PARENT and BUYER
harmless against and in respect of:
15.1.1 Any and all loss, damage, deficiency, or liability from
(i) any misrepresentation, breach of representation, warranty or covenant, or
nonfulfillment of any agreement on the part of SELLER under this Agreement and
(ii) any liability or obligation incurred by SELLER or arising out of any event
or circumstances occurring prior to the Closing Date which is not an Assumed
Liability by BUYER (including, without limitation, the Excluded Liabilities (as
defined in the Undertaking)); and
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15.1.2 Any and all actions, suits, proceedings, demands,
assessments, judgments, costs and expenses, including reasonable attorneys'
fees, incident to Sub-Paragraph 15.1.1.
15.1.3 The SELLER's obligation to indemnify the PARENT and
BUYER for damages pursuant to this Section 15.1 is subject to the following
limitations: (i) no indemnification shall be made by the SELLER for damages
arising solely from clause (i) of Sub-Paragraph 15.1.1 unless the aggregate
amount of such damages exceeds $47,000 and then to the full extent of all such
damages; and (ii) in no event shall the Seller's aggregate obligation to
indemnify the PARENT and BUYER hereunder exceed the Purchase Price.
15.2 PARENT or BUYER shall within reasonable time of its receiving
notice of a claim give written notice to the other party of any claim for which
that party seeks indemnification under Paragraphs 15.1, and the indemnitor shall
have the right to contest, defend, or litigate any matter in respect of which
indemnification is claimed. Any delay in or failure to give notice of a claim
for indemnification shall not relieve the indemnitor's obligation except to the
extent that indemnitor can demonstrate prejudice by such delay or failure. The
indemnitor shall have the exclusive right to settle, either before or after the
initiation of litigation, any matter in respect of which indemnification is
claimed, but, prior to any such settlement, written notice of its intention to
do so shall be given to the other party. In the event the indemnitor fails
promptly to defend any such claim as provided in Paragraphs 15.1, the other
party may do so and shall then have the right, in its sole discretion, exercised
in good faith and upon the advice of counsel, to settle, either before or after
the initiation of litigation, any matter in respect of which indemnification is
claimed.
16.0 CONTINUING COVENANTS. [Intentionally Omitted]
17.0 CORPORATE NAME. GUARANTOR hereby grants to BUYER and PARENT a
non-exclusive royalty-free license to use the names and marks set forth on
Exhibit 17.0 in connection with the operation of the Assets following the
Closing Date for a term of six months following the Closing Date in a manner
consistent with the use of such licensed marks by the SELLER in connection with
the SELLER's business prior to the Closing Date, such grant of rights to BUYER
and PARENT being subject to BUYER's and PARENT's obligation not to use the
licensed marks in any manner which would materially degrade the
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quality or value of such licensed marks. Following such period, such license
shall continue thereafter, on the same terms and conditions as provided above,
until such time as GUARANTOR shall have notified BUYER and PARENT of its intent
to terminate the license; PROVIDED, HOWEVER, that such notification shall be in
writing and shall be given at least sixty (60) days prior to the intended date
of termination.
18.0 GUARANTEE. In consideration of the benefits to SELLER under this
Agreement, GUARANTOR does hereby guarantee, jointly and severally, with SELLER,
all of the agreements (including but not limited to agreements to indemnify),
representations, warranties and covenants of SELLER under this Agreement and
under all documents to be executed pursuant to this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXX XXXXXX
-------------------------------
XXXXXXX XXXX
-------------------------------
UNIVERSAL OUTDOOR (N.Y) ADVERTISING
ACQUISITION CORPORATION
By:
----------------------------
Name:
Title:
UNIVERSAL OUTDOOR, INC.
By:
----------------------------
Name:
Title:
As to Sections 10.9, 17.0 and 18.0,
ALLIED OUTDOOR ADVERTISING, INC.
By:
----------------------------
Name:
Title:
INDEX TO EXHIBITS
Exhibit
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2.0 - List of Displays
2.1 - Xxxx of Sale
2.2 - Assignment and Assumption of Leases
2.3 - Assignment and Assumption of Contracts
2.4 - Assignment and Assumption of Permits
3.0(a) - Seller's Account Information
3.0(b) - Form of Undertaking
9.1 - Prepaid Leases
9.2.3 - Percentage Leases
10.5 - Litigation
10.8 - Condition of Displays
10.9(a) - Compliance With Applicable Laws
10.9(b) - Taxes
17.0 - Use of Name
EXHIBIT 2.0
DISPLAYS
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that XXXXXX XXXXXX and XXXXXXX XXXX
(together, the "Seller") pursuant to that certain Agreement, dated June 30, 1997
(the "Agreement") for and in consideration of the sum of $ ___________ and other
valuable consideration to them in hand paid by UNIVERSAL OUTDOOR (N.Y)
ADVERTISING ACQUISITION CORPORATION ("Buyer"), the receipt of which is hereby
acknowledged, do hereby grant, bargain, sell and convey to Buyer, its successors
and assigns, forever, the structures, light and electrical fixtures, aprons,
catwalks, panels and such other fixtures and appurtenances as now exist on the
outdoor advertising displays at the locations more fully described on Exhibit
2.0 to the Agreement attached hereto, subject to the terms and conditions of the
Agreement.
TO HAVE AND TO HOLD THE SAME, unto the Buyer, its successors and assigns
forever. The Seller for itself and its successors and assigns, does hereby
covenant and agree to and with said Buyer, its successors and assigns that
Seller is the lawful owner of the Assets (as defined in the Agreement), and has
good right to sell the same as aforesaid; that the same are free from all
encumbrances that are caused by any action, inaction or omission by Seller, and
the Seller will warrant and defend the sale of the Assets hereby made unto the
Buyer, its successors and assigns, against all and every person and persons
whomever, lawfully claiming or to claim the same, subject to encumbrances, if
any, hereinbefore mentioned.
IT WITNESS WHEREOF, the Seller executed this Xxxx of Sale this ___ day of
July, 1997.
XXXXXX XXXXXX
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XXXXXXX XXXX
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ASSIGNMENT AND ASSUMPTION OF LEASES
KNOW ALL MEN BY THESE PRESENTS, that XXXXXX XXXXXX and XXXXXXX XXXX
(together, the "Assignor") pursuant to the terms of that certain Agreement dated
June 30, 1997 (the "Agreement"), and on behalf of itself for and in
consideration of the sum of $ _____________ and other good and valuable
consideration to them in hand paid by UNIVERSAL OUTDOOR (N.Y.) ADVERTISING
ACQUISITION CORPORATION, the receipt of which is hereby acknowledged, hereby
assign, transfer, and convey to UNIVERSAL OUTDOOR, INC. ("Assignee"), all of
Assignor's right, title and interest in and to the Leases, for the locations
listed on Exhibit 2.0 to the Agreement, subject to the terms and conditions of
the Agreement.
ASSIGNOR REPRESENTS AND WARRANTS that it owns free and clear of all liens
and encumbrances that are caused by any action, inaction or omission by Assignor
the interest set forth in the attached Leases and that such Leases are freely
assignable without the consent of any other party.
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns,
with respect to each of the foregoing Leases for and during the remainder of the
respective terms thereof, subject to the performance and observance of all other
covenants, conditions and stipulations set forth respectively therein. By its
acceptance of this assignment, Assignee hereby assumes all of the obligations of
Assignor provided for under each Lease arising from and after the date hereof.
IN WITNESS WHEREOF, Assignor has executed, and Assignee has accepted, this
assignment this ___ day of July, 1997.
XXXXXX XXXXXX
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XXXXXXX XXXX
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ACCEPTED AND AGREED:
UNIVERSAL OUTDOOR, INC.
By:
--------------------------------
Name:
Title:
ASSIGNMENT AND ASSUMPTION OF ADVERTISING CONTRACTS
KNOW ALL MEN BY THESE PRESENTS, that XXXXXX XXXXXX and XXXXXXX XXXX
(together, the "Assignor") pursuant to the terms of that certain Agreement dated
June 30, 1997 (the "Agreement"), and on behalf of itself for and in
consideration of the sum of $ ______________ and other good and valuable
consideration to them in hand paid by UNIVERSAL OUTDOOR (N.Y.) ADVERTISING
ACQUISITION CORPORATION, the receipt of which is hereby acknowledged, hereby
assign, transfer, and convey to UNIVERSAL OUTDOOR, INC. ("Assignee"), all of
Assignor's right, title and interest in and to the Advertising Contracts, for
the locations listed on Exhibit 2.0 to the Agreement, subject to the terms and
conditions of the Agreement.
ASSIGNOR REPRESENTS AND WARRANTS that it owns free and clear of all liens
and encumbrances that are caused by any action, inaction or omission of Assignor
the interest set forth in the attached Advertising Contracts and that such
Advertising Contracts are freely assignable without the consent of any other
party.
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns,
with respect to each of the foregoing agreements for and during the remainder of
the respective terms thereof, subject to the performance and observance of all
other covenants, conditions and stipulations set forth respectively therein. By
its acceptance of
this assignment, Assignee hereby assumes all of the
obligations of Assignor provided for under each Advertising Contract arising
from and after the date hereof.
IN WITNESS WHEREOF, Assignor has executed, and Assignee has accepted, this
assignment this ___ day of July, 1997.
XXXXXX XXXXXX
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XXXXXXX XXXX
------------------------------
ACCEPTED AND AGREED:
UNIVERSAL OUTDOOR, INC.
By:
--------------------------------
Name:
Title:
ASSIGNMENT AND ASSUMPTION OF PERMITS
KNOW ALL MEN BY THESE PRESENTS, that XXXXXX XXXXXX and XXXXXXX XXXX
(together, the "Assignor") pursuant to the terms of that certain Agreement dated
June 30, 1997 (the "Agreement"), and on behalf of itself for and in
consideration of the sum of $ ______________ and other good and valuable
consideration to them in hand paid by UNIVERSAL OUTDOOR (N.Y.) ADVERTISING
ACQUISITION CORPORATION, the receipt of which is hereby acknowledged, hereby
assign, transfer, and convey to UNIVERSAL OUTDOOR, INC. ("Assignee"), all of
Assignor's right, title and interest in and to the Permits, for the locations
listed on Exhibit 2.0 of the Agreement, subject to the terms and conditions of
the Agreement.
ASSIGNOR REPRESENTS AND WARRANTS that it owns free and clear of all liens
and encumbrances that are caused by any action, inaction or omission of Assignor
the interest set forth in the attached Permits and that such Permits are freely
assignable without the consent of any other party.
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns,
with respect to each of the foregoing Permits for and during the remainder of
the respective terms thereof, subject to the performance and observance of all
other covenants, conditions and stipulations set forth respectively therein. By
its acceptance of this assignment, Assignee hereby assumes all of the
obligations of Assignor provided for under each Permit arising from and after
the date hereof.
IN WITNESS WHEREOF, Assignor has executed, and Assignee has accepted, this
assignment this ___ day of July, 1997.
XXXXXX XXXXXX
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XXXXXXX XXXX
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ACCEPTED AND AGREED:
UNIVERSAL OUTDOOR, INC.
By:
--------------------------------
Name:
Title:
EXHIBIT 3.0 (a)
SELLER'S ACCOUNT INFORMATION
FOR WIRE TRANSFER
UNDERTAKING
UNDERTAKING executed and delivered on July , 1997 (the "Undertaking"), by
Universal Outdoor, Inc., an Illinois corporation (the "Parent"), in favor of
Xxxxxx Xxxxxx and Xxxxxxx Xxxx (together, the "Seller").
W I T N E S S E T H:
WHEREAS, pursuant to that certain agreement, dated as of
June 30, 1997 (the "Agreement"), between the Seller, Parent and Universal
Outdoor (N.Y.) Advertising Acquisition Corporation, a Delaware corporation (the
"Buyer"), the Seller has agreed to sell, convey, assign, transfer and deliver
all of its right, title and interest in and to the Assets to the Buyer and the
Parent, and the Buyer and the Parent have agreed to purchase, acquire and accept
such Assets from the Seller, all as more fully described in the Agreement; and
WHEREAS, pursuant to the Agreement, the Parent has agreed to enter into
this Undertaking, pursuant to which the Parent shall assume and agree to pay,
perform, and discharge or cause to be performed and discharged the liabilities
and obligations expressly set forth in Section 2, as more fully provided herein.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINED TERMS. Capitalized terms which are used but not defined herein
shall have the meaning ascribed to such terms in the Agreement.
2. UNDERTAKING. Except as provided in Section 3 below and subject to the
terms and conditions of the Agreement, the Parent hereby undertakes, assumes and
agrees to pay, perform or discharge, the obligations and liabilities of the
Seller pursuant to the Leases, Permits and Advertising Contracts (collectively,
the "Assumed Liabilities").
3. EXCLUDED LIABILITIES. Notwithstanding anything contained herein to
the contrary, it is expressly understood and agreed by the parties hereto that
(i) the Assumed Liabilities shall not include any other liabilities or
obligations of the Seller, whether known or unknown, disclosed or undisclosed,
matured or unmatured, accrued, absolute, contingent or otherwise, not
specifically identified in Section 2 hereof and (ii) the Parent shall not
assume, or agree to perform, pay or discharge, and the Parent has not assumed,
any liabilities, obligations or commitments not expressly assumed pursuant to
Section 2 hereof, including, without limitation, liabilities or obligations
relating to or arising out of the following:
(a) any obligation of the Seller to indemnify any person or entity by
reason of the fact that such person or entity was a director, officer, employee,
shareholder or agent of the Seller or was serving at the request of the Seller
as a partner, trustee, director, officer, employee, shareholder or agent of
another entity (whether such indemnification is for judgments, damages,
penalties, fines, costs, amounts paid in settlement, losses, expenses, or
otherwise and whether such indemnification is pursuant to any statute, charter
document, bylaw, agreement, or otherwise);
(b) any liability of the Seller for costs and expenses incurred in
connection with the Agreement; and
(c) any obligation of the Seller under the Agreement.
4. BINDING EFFECT. This Undertaking shall inure to the benefit of the
Seller and its successors and permitted assigns and be binding upon and
enforceable against the Parent and its respective successors and permitted
assigns. In the event of a conflict between the terms hereof and the Agreement,
the terms of the Agreement shall control.
5. COUNTERPARTS. This Undertaking may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
6. Governing Law. This Undertaking shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of law principles thereof.
7. INDEMNIFICATION. Seller, Parent and Buyer hereby agree that the
provisions of Section 15.0 of the Purchase Agreement with respect to
indemnification shall govern all obligations of the parties with respect to the
Assumed Liabilities and the Excluded Liabilities and such other matters
contemplated by this Undertaking as applicable.
IN WITNESS WHEREOF, this undertaking has been duly executed and delivered
by the duly authorized officers of the parties hereto as of the date first above
written
XXXXXX XXXXXX
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XXXXXXX XXXX
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UNIVERSAL OUTDOOR, INC.
By:
---------------------------
Name:
Title
EXHIBIT 3.2
ALLOCATION OF PURCHASE PRICE
EXHIBIT 9.1
PREPAID LEASES
EXHIBIT 9.2.3
PERCENTAGE LEASES
EXHIBIT 10.5
LITIGATION
1. City of New York x. Xxxx Electric, Xxxxxx Xxxxxxxxxx, Ace Sign & Rigging
(Allied Outdoor Advertising)(1), Supreme Court Kings County, Docket
# 8852/96 (Judge Xxxxxxxx); on appeal
---------------------
(1) Buyer acknowledges full responsibility for the indicated lawsuit including
liabilities growing out of the same and all costs and expenses related
thereto, but with respect to costs and expenses, only to the extent such
costs and expenses arise after the Closing.
EXHIBIT 10.8
CONDITION OF DISPLAYS
EXHIBIT 10.9(a)
COMPLIANCE WITH APPLICABLE LAWS
SEE EXHIBIT 10.5
EXHIBIT 10.9(b)
TAXES
EXHIBIT 17.0
USE OF NAME
With regard to the use of the name, Seller grants to the Buyer and
Parent a non-exclusive royalty-free license to use the following names and xxxx
and no other:
The word "Allied" contained on an elliptical shape as shown hereon.
Such use shall be solely and exclusively limited in connection with the
identification on existing displays.
